Abstract

Excerpted From: Todd J. Clark, Reversing DEI: The Consequence - “IED” Indoctrination and Elimination of Diversity, 55 University of Toledo Law Review 169 (Winter, 2024) (184 Footnotes) (Full Document)

Attacks on Diversity, Equity, and Inclusion (“DEI”) efforts, from right-wing conservatives, are an attack on marginalized communities, specifically black and brown people and members of the LGBTQ+ community. Over the past five years, the world around us has changed. DEI initiatives that once offered a glimmer of hope for members of marginalized communities to finally access the American Dream, have been eviscerated with Anti-Woke, Anti-Critical Race Theory rhetoric, and more recently, the Supreme Court's decisions in Students for Fair Admissions v. Harvard and Students for Fair Admissions v. UNC. These attacks originate from a false narrative that empowering marginalized groups results in the destruction of American values. They are also informed by a desire to maintain a status quo in America where the “haves” continue to have, and the “have nots” continue to reside at the bottom of America's socio-economic hierarchy.

Part I of this Article will provide a historical background for the circumstances that led to the creation of DEI programs and their proliferation. Part II will discuss the critical role that DEI initiatives have played in helping to level the playing field in a way that anti-discrimination laws have failed to do so and are incapable of accomplishing. Part III will discuss the retrenchment of DEI initiatives. Finally, Part IV will discuss the future of DEI as well as provide practical solutions to leaders who value and understand the importance of DEI, to lawfully continue the fight to improve access to marginalized communities.

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IV. Solutions

While DEI efforts are under a serious attack, there is a toolbox of strategies that can operate to stave off the retrenchment.

[. . .] Third, embracing the concept of “Corporate Justice” can serve as a valid solution for supporting DEI efforts. In our book entitled “Corporate Justice,” Dean Andre Douglas Pond Cummings and I, state the following about Corporate Justice:

Corporate Justice is an elusive term--easily stated, but not easily defined. At its core, Corporate Justice refers to a responsibility, even a moral obligation, which businesses and corporations have to engage fairly, civilly and responsibly in the world and community that they do business and from which they derive profits. More than that, the concept of Corporate Justice also focuses on the roles that shareholders, policy makers, other stakeholders and the community at large have in fostering a more just and responsible business community .... Corporate Justice requires that corporations do no harm in their pursuit of profits.

Our definition of Corporate Justice is more comprehensive than the frequently used, and often misapplied, concept of Corporate Social Responsibility (“CSR”). The primary focus of CSR is only on that of the corporate insiders to recognize a self-awareness that the corporate entity must engage responsibly with the community. This recognition is often difficult to manifest since corporate insiders are primarily concerned with profit maximization. Corporate Justice, however, recognizes that stakeholders, in and outside of the corporation, have a duty to ensure that corporations justly operate in the business world.

Corporate Justice encompasses much more than CSR. While Corporate Justice embraces the ethos and goals of CSR, it requires much more than good citizenship by a corporation. Corporate Justice seeks to hold corporate leaders, shareholders, politicians and the community at large responsible for ensuring that financial markets operate in a manner ... that promotes the financial well-being of more than a corporation's own shareholders or the corporation's own decision makers. While Corporate Justice does not reject the idea of generating profit, it does mandate that profit maximization cannot be a corporation's only objective. Unlike CSR, Corporate Justice recognizes that a corporation's obligation to promote this responsibility is a responsibility that is shared by groups in and outside of the corporation.

Embracing the concept of Corporate Justice will expand the duty of who is responsible for promoting corporate accountability. When there are parties, in and outside of the corporation, operating to promote fairness, the entire financial marketplace operates more effectively.

Corporate Justice in our current environment where DEI is under attack would mandate that external stakeholders, like consumers as well as the government, operate to promote DEI as a valid corporate ideal. For example, consumers through the “power of the purse,” can decide which corporations to patronage by evaluating a corporation's commitment to diversity. This same strategy was highly effective during the Civil Rights Movement when Black bus riders in Montgomery, Alabama stopped riding the city buses after Rosa Parks was arrested for failing to sit at the back of the bus. The boycott proved to be extremely successful at gaining the city's attention. “The Montgomery Bus Boycott was a successful enterprise that put on full display the influence of the African American dollar. It has been suggested that the boycott cost the city of Montgomery $3,000 per day.” In addition, local businesses also suffered because the boycotters began prioritizing other expenditures for their money. Utilizing a similar approach against corporations that fail to embrace meaningful diversity would have an enormous impact on ensuring a legitimate corporate commitment to DEI. According to a 2018 Nielsen report entitled, “Black Dollars Matter: The Sales Impact of Black Consumers,” Black consumers have a collective and important power over the marketplace. While Blacks account for only 14% of the population, they are responsible for approximately $1.2 trillion in purchases. Through this purchasing power, Black's have an enormous capacity to successfully demand greater diversity.

The California Legislature's enactment of Assembly Bill No. 979 (“AB 979”) provides an excellent example of the role that the government can play in promoting DEI through Corporate Justice. AB 979, also known as California's Board Diversity Statute, required California public companies headquartered in the state to include a minimum number of directors from “underrepresented communities” or be subject to fines for violating the statute. Although the United States District Court for the Eastern District of California ultimately found the statute unconstitutional, it was nonetheless a great example of how a government can engage in Corporate Justice as an external stakeholder.

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Fifth, it is important to continue to highlight that the SFFA cases only apply to admissions. While there is concerted effort from DEI opponents to expand the holding, the case was narrowly decided in the admissions context. As such, efforts to apply SFFA to diversity initiatives in the corporate context are premature. As a result, corporations that truly value diversity must resist the urge to acquiesce to the conservative threat of litigation. As part of this process, advocates for DEI must create a superfund to defend DEI-based programs and initiatives much like Edward Blum has created to dismantle them. In addition, it is critical to appreciate that SFFA does not prohibit diversity as a valuable consideration. Instead, Justice Roberts opinion highlights a pathway to incorporate DEI as long as the DEI-based initiative does not operate to exclude groups based on racial classifications. As Justice Roberts reasoned, it is acceptable to provide opportunities to individuals based on an analysis of how that person's “race affected his or her life ...,” as long as it is tied to “that student's courage and determination” or “that student's unique ability to contribute to the university.” The central concern is that “the student must be treated based on his or her experiences as an individual--not on the basis of race.”

Dean and Professor of Law, Widener University Delaware Law School; J.D., University of Pittsburgh School of Law.